Paul Mitchard is head of litigation at Simmons & Simmons.

Paul Mitchard

Lord Woolf's proposals may in the long term remove or mitigate the problem but at present RSC Order 38 Rule 38 does little to encourage agreement between experts in a way which promotes a narrowing or reduction of the issues at an early stage.

The Chancery and Queen's Bench Division practice is typically for meetings of experts once the exchange of reports has taken place.

By then each side has set out its perception of the facts and applicable rules and, on receipt of the opposing report, searches for areas of genuine disagreement. Opinions become entrenched. The experts are wary of criticism from the solicitor or client whose case they have supported and of subjecting themselves to cross-examination on the strength of their opinions.

The practice in the Official Referee's Court, which has been working effectively for some years, is for meetings to take place before formal reports have been exchanged.

To take the maximum advantage, experts must be fully prepared but the practice is more conducive to defining and reducing the issues than that in Chancery and the Queen's Bench Division.

In either case, however, until the status of any written report emerging from meetings of experts is clarified, some solicitors (despite Lord Woolf's views upon their professional obligations) will continue, in their client's interests, to withhold authority from their experts to express a final opinion.

The case law is inconclusive but the effect of signature of a joint report should be to bind the expert so he may

not give contrary evidence, thereby preventing the party instructing him from putting forward an inconsistent case.

Order 38 Rule 38 should be amended to require a report to be produced that has a binding effect.



DPP 'fair trial' investigation

The Director of Public Prosecutions has been asked by the Court of Appeal to investigate how "outrageous" allegations were made that a businessman on drug charges was denied a fair trial because of improper conduct by three judges. And the Law Society is scheduled to investigate solicitors who were instructed to put forward the accusations on behalf of Paul Blanchard, who was jailed for six years at Newcastle Crown Court in October 1992. The calls follow the rejection of an application by Blanchard for leave to appeal against his conviction. It had been claimed that Judge MacDonald, who presided at Blanchard's trial, had phone conversations about the case with Hong Kong Supreme Court judge Mr Justice Mortimer - an acquaintance who once represented Blanchard. Also that Mr Justice Blofeld, who turned down Blanchard's initial appeal application, had spoken on the phone to the other two judges.



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